The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com

Wednesday, June 06, 2007

"The value of freedom is found not only in the larger issues of life but also in the fanciful and strange."

The Supreme Court's first ruling on an Iraq war protest is not likely to be remembered as a landmark in the law. In a 9-0 ruling, the justices rejected a claim for legal fees filed on behalf of a Florida nudist who wanted to form a peace symbol out of naked bodies on a state beach.Toni Anne Wyner's planned demonstration ran afoul of the state's Bathing Suit Rule, which, as its name suggests, requires beachgoers to cover up. In February 2003, she went to court to challenge this rule as a violation of her 1st Amendment right to free expression. In the past, the Supreme Court has said that nudity and nude dancing can be a form of expressive conduct, though it can be regulated. At first, a judge saw merit to her complaint and allowed the nude protest to take place — but behind a screen, to shield other beach patrons at John D. MacArthur Beach State Park in Palm Beach County. "The value of freedom is found not only in the larger issues of life but also in the fanciful and strange," said U.S. District Judge Donald Middlebrooks. He continued: "Protesting a potential war through naked protest seems a bit quixotic, but it is also part of the freedom that both those supporting the war and those who oppose it seek to protect."After forming their peace symbol behind the screen, the nudists went into the water naked. When Wyner went back to court seeking a permanent order allowing such protests, the judge refused and ruled for the state. However, he said that the civil liberties lawyers who represented Wyner were entitled to be paid because they had won at least one round of the litigation. The Supreme Court reversed that decision Monday in Sole vs. Wyner. Federal law entitles the "prevailing party" in a civil rights or civil liberties case to obtain legal fees from the government. "Wyner is not a prevailing party, we conclude, for her initial victory was ephemeral," Justice Ruth Bader Ginsburg wrote for the court. A plaintiff who wins a preliminary injunction, then loses on the merits, wins a battle but loses a war, Ginsburg wrote.

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The Southern District of Florida blog is authored by David Oscar Markus, who is a criminal trial and appellate lawyer in Miami, Florida. He frequently practices in federal courts around the country, including his hometown, the Southern District of Florida and the 11th Circuit Court of Appeals.